President Trump's Attack on Syria and the President's War-making Powers and Responsibilities

In response to recent chemical attacks on Syrian civilians, President Trump ordered a missile attack in Syria by relying, in large part, on the powers granted to the office of the President under the War Powers Resolution (also known as the War Powers Act).[i] The chemical attacks have reportedly killed close to 90 people, and “left hundreds choking, fitting or foaming at the mouth.”[ii] The chemical attacks, President Trump argues, in combination with the Syrian refugee crisis, violate a host of human rights laws and contribute to escalating instability in the region, which provides the legal authority for his use of force.[iii] Amidst ongoing questions about the Trump administration’s knowledge of and experience in international relations and conflicts, this strategy raises questions about whether President Trump has the legal authority to unilaterally send U.S. troops into conflict, and, if so, the limitations of that power.

The War Powers Resolution, enacted in 1973, describes the powers and limitations of a U.S. President to enter into an armed conflict with another country without the consent of Congress.[iv] The Resolution was prompted by President Nixon’s bombing of Cambodia during the Vietnam War without notifying Congress. The Resolution states, in relevant part, that in order to enter into armed conflict, the President must seek congressional approval, or be directly responding to an attack upon the United States. Without congressional approval, the President must withdraw troops within sixty days. As Commander-in-Chief, the President has broad authority to respond with force if the U.S. is attacked. The controversial element of the Act focuses on to what extent Congress must consent. Importantly, there is great debate as to what the repercussions would be, if any, for a U.S. President’s refusal to comply with the sixty day rule under circumstances where conflict was ongoing. The issue is not the legal authority, but the reality that no one, including Congress, could actually do much to stop a U.S. President from continuing to engage in military actions he believed to be necessary, or to punish presidential actions deemed to be violations of the Resolution.

Furthermore, the President has authority to exercise war powers under the Constitution. Article II enables the President to "declare war . . . raise and support armies . . . [and] “make [military] rules.”[v] Article II gives the President the power to act as Commander in Chief of the military. For this reason, the executive branch has argued many times that the War Powers Resolution is unconstitutional in that it places a limitation upon the President’s authority granted under the Constitution to decide how and when force should be used against foreign nationals.[vi]

Many U.S. Presidents have invoked the powers granted under the Constitution to use force under circumstances lacking congressional approval. For example, during his presidency, Bill Clinton ordered the use of force in Yugoslavia, but did not inform Congress until after the fact of his reasons for taking such actions. This presidential approach resulted in a lawsuit filed by Congress, but the suit was dismissed for lack of standing.[vii] In 2011, President Obama took military action in Libya without seeking congressional approval. In 2014, legislation was proposed to amend the War Powers Resolution to impose greater restrictions on the President’s authority. This proposal included requiring the President, within three days of executing armed action, to request Congress’ approval before entering into significant armed conflict.[viii]

Additionally, past U.S. Presidents have sought congressional approval to take military action as a political move to assuage the legislative branch and thwart any accusation of failure to cooperate. Whether President Trump’s legal authority to use force in Syria relies upon the Constitution or the War Powers Resolution, the latter does require him to report to Congress within 48 hours "(A) the circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement."[ix] President Trump complied with this portion of the Resolution via letter dated April 8, 2017, stating, in relevant part, "I directed this action in order to degrade the Syrian military's ability to conduct further chemical weapons attacks and to dissuade the Syrian regime from using or proliferating chemical weapons, thereby promoting the stability of the region and averting a worsening of the region's current humanitarian catastrophe.”[x] This letter represents a prudent decision by the Trump administration to comply with the letter of the law and attempt to bridge the severe divides existent in the current political climate.

Another interesting element of President Trump’s actions in Syria relates to his perceived relationship with Russia. The Chemical Weapons Convention “prohibits the development, production, stockpiling, and use of chemical weapons.”[xi] Although Syria agreed to the terms of the Chemical Weapons Convention with the support of its ally, Russia, and reported the destruction of its chemical weapons stockpiles, the recent attacks prove that Syria is not complying with the terms of the agreement. Russia has condemned President Trump’s use of force in response to Syria’s alleged violation of the Convention. This violation is one of President Trump’s justifications for the use of force against Syria, but whether this move will alter the perception that he was in cahoots with Russia prior to the election remains to be seen.

At best, the relationship between the legislative and executive branches under the War Powers Resolution is murky. Every presidential administration since it was enacted has opined informally or as part of a formal procedure that the Resolution is too far reaching or even unconstitutional. Additionally, even if President Trump had the legal authority to order the missile strike in Syria, his latest unilateral move has significant political implications. If the Trump administration expects to continue or escalate the use of force in Syria, it would be best advised to not only seek congressional approval prior to the sixty day mark, but also to display concerted efforts to unify both branches and parties around the idea that the conflict is so severe that the United States has no choice but to intervene.